DONALD OWENS, PETITIONER V. UNITED STATES OF AMERICA
No. 89-6070
In The Supreme Court Of The United States
October Term, 1989
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eighth Circuit
Brief For The United States In Opposition
OPINION BELOW
The opinion of the court of appeals (Pet. App. A1-A4) /1/ is
unreported.
JURISDICTION
The judgment of the court of appeals was entered on September 21,
1989. The petition for a writ of certiorari was filed on November 18,
1989. The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
QUESTION PRESENTED
Whether petitioner's provisional sentence, pursuant to 18 U.S.C.
4244(d), impermissibly exceeds the maximum prison term he could
receive under the Sentencing Guidelines.
STATEMENT
Following a guilty plea in the United States District Court for the
Eastern District of Missouri, petitioner was convicted of stealing
mail from a post office, in violation of 18 U.S.C. 1708. Prior to
sentencing, the court determined that petitioner presently suffered
from a mental disease or defect and that, in lieu of being sentenced
to imprisonment, he should be committed to a suitable facility for
treatment. Accordingly, under authority of 18 U.S.C. 4244(d), the
court provisionally sentenced petitioner to up to five years'
commitment in a treatment facility. The court of appeals affirmed.
Pet. App. A1-A4.
1. On January 14, 1988, petitioner was arrested for mail theft.
Before his arraignment, the district court granted petitioner's motion
for a psychiatric examination pursuant to 18 U.S.C. 4241(b). The
psychiatric report, dated April 20, 1988, concluded that petitioner
was mentally competent to stand trial and that he was not insane at
the time of the offense. The report stated that petitioner suffered
from schizophrenia and a possible bipolar disorder, but that he was
not in need of any psychotropic medication. On June 9, 1988, the
court declared petitioner competent to stand trial. Pet. C.A. Br. 1.
Petitioner returned to court on July 7, 1988, intending to enter a
plea of guilty. Before he could enter his plea, his behavior in the
courtroom prompted the court to order a second psychiatric
examination. The second psychiatric report, dated August 31, 1988,
offered essentially the same diagnosis and stated the same conclusions
concerning petitioner's competence to stand trial and his sanity at
the time of the offense as did the first report. This time, however,
petitioner was administered psychotropic medication. Pet. C.A. Br. 2.
On September 12, 1988, petitioner entered his guilty plea. As a
result of petitioner's behavior, on October 11, 1988, the court
continued the sentencing and, pursuant to 18 U.S.C. 4244(b), ordered a
third psychiatric examination. The third psychiatric report, dated
November 19, 1988, revealed that petitioner's behavior was "bizarre"
and "hostile," and that his persistent "angry mood" necessitated the
tightest security available. The report concluded that petitioner was
suffering from "a major mental illness which would benefit from
psychiatric treatment." Pet. App. A1 n.2; Gov't C.A. Br. 3-4.
On December 6, 1988, petitioner was returned to court for
sentencing. After reviewing the psychiatric reports, the court found
that petitioner was "presently suffering from a mental disease or
defect, and that, in lieu of being sentenced to imprisonment, he
should be committed to a suitable facility for care or treatment."
Pet. App. B2. As required upon such a finding (18 U.S.C. 4244(d) &
(e)), the court committed petitioner to the custody of the Attorney
General for hospitalization in a suitable facility pending a
determination by the facility that petitioner has recovered from his
mental disease or defect to such an extent that he is no longer in
need of custody for care or treatment. /2/ Under Section 4244(d),
such a commitment for treatment of mental illness "constitutes a
provisional sentence of imprisonment to the maximum term authorized by
law for the offense for which the defendant was found guilty." Because
18 U.S.C. 1708, the statute that petitioner was convicted of
violating, provides for a maximum five-year term of imprisonment, the
court entered a provisional sentence of five years. Pet. App. B2. In
so doing, the court rejected petitioner's argument that he should be
released from confinement immediately because he had already served
more than the maximum of eight months' imprisonment he could receive
under the Sentencing Guidelines. Pet. App. C7-C8. /3/
2. On appeal, petitioner contended, first, that the length of his
provisional sentence should have been determined by reference to the
Sentencing Guidelines instead of the charging statute. The court of
appeals rejected this claim, finding "not reversible error" the
district court's conclusion that "the Insanity Defense Reform Act,"
which includes Section 4244, "is an exceptional piece of criminal
legislation because the lengths of criminal sentences imposed under
its incompetency provisions are dictated by the charging statute in
the indictment * * *, not by the Sentencing Guidelines." Pet. App. A3.
Petitioner also contended that his commitment to a treatment
facility pending his recovery from mental illness violated due process
absent any determination by the district court that he was dangerous.
In rejecting this claim, the court of appeals concluded that
petitioner's "felony conviction satisfies any constitutional need for
the finding of 'dangerousness' required to justify further detention."
Pet. App. A4.
ARGUMENT
Petitioner renews his challenge to his five-year provisional
sentence and commitment for treatment under Section 4244(d).
Specifically, he contends that, as a matter of statutory construction
and due process, his provisional sentence and commitment for treatment
impermissibly exceed the maximum prison term to which he is subject
under the Sentencing Guidelines. The court below correctly rejected
this claim.
1. Petitioner contends (Pet. 5-7) that his provisional sentence
violated the Sentencing Guidelines (18 U.S.C. 3551 et seq.). The
Sentencing Guidelines, however, do not govern the length of
commitments under Section 4244(d). That Section explicitly provides
for a provisional sentence "to the maximum term authorized by law for
the offense for which the defendant was found guilty" -- that is, to
the maximum term prescribed by the charging statute. Under 18 U.S.C.
3551(a), the Guidelines apply except, as in Section 4244(d), "as
otherwise specifically provided." Here, the Guidelines will become
relevant if, before the expiration of the provisional sentence, "the
director of the facility in which the (petitioner) is hospitalized * *
* determines that the (petitioner) has recovered from his mental
disease or defect to such an extent that he is no longer in need of
custody for care or treatment in such a facility" (18 U.S.C. 4244(e));
under those circumstances, petitioner would return to court for final
sentencing. Ibid. Petitioner's statutory claim that the Sentencing
Guidelines should have governed the length of his provisional sentence
and commitment for treatment thus conflicts with the explicit language
of the relevant statutes.
Petitioner also advances the statutory argument (Pet. 7-8) that the
district court erred by not following the procedure specified in 18
U.S.C. 4246. That Section requires special findings if a person is to
be committed beyond the expiration of his sentence, or if criminal
charges have been dropped. Petitioner's argument rests entirely on
the contention that his proper sentence should have been determined by
the Sentencing Guidelines, and that commitment beyond the term
suggested by the Guidelines required the Section 4246 procedure. As
discussed, however, petitioner's premise is erroneous; his
provisional sentence was, not the term suggested by the Guidelines,
but the maximum term authorized by the charging statute. Thus
petitioner was not held beyond the expiration of his sentence, and
there was no need to follow the Section 4246 procedure.
2. Even if the Guidelines do not govern his provisional sentence as
a matter of statutory construction, petitioner argues (Pet. 8-11)
that, absent a finding that he is dangerous, the Due Process Clause
precludes his confinement for treatment under Section 4244(d) beyond
the maximum term of imprisonment he could receive under the
Guidelines.
Petitioner contends that confinement for a longer period than the
authorized sentence for commission of a crime is permissible only on a
finding that the prisoner, as a result of mental illness, presents a
danger to society or to himself. Petitioner's claim, however, is
inapplicable to his case. As with the statutory claims, petitioner's
constitutional argument confuses the Sentencing Guidelines with the
maximum sentence established by the charging statute (in this case, 18
U.S.C. 1708).
There is no question in this case about the constitutional
requirements for holding a convict beyond the length of an authorized
sentence. As noted, Section 4244(d) specifies a provisional
sentencing and treatment procedure for convicted persons who are
mentally ill. It requires district courts to commit such persons for
treatment until they recover but not for a period longer than the
maximum term permitted by the charging statute. Petitioner's
provisional sentence and commitment for treatment are entirely
consistent with the sentence authorized for the offense of stealing
mail, and petitioner's claim regarding the constitutional requirements
for confinement beyond an authorized term is not applicable. /4/
Nor is Congress constitutionally prohibited from making special
provision, within the bounds of a maximum authorized sentence, for
sentencing and treatment of the mentally ill. It has long been
settled that courts, in imposing sentence, may properly take into
consideration a wide range of personal factors bearing on a
defendant's chances for rehabilitation. See, e.g., Wasman v. United
States, 468 U.S. 559, 563-564 (1984); Williams v. New York, 337 U.S.
241, 247-248 (1949). By the same token, Congress may properly take
such factors into account in prescribing criteria, within the context
of the maximum authorized sentence, for sentences (and treatment) of
the mentally ill. Thus petitioner is incorrect in asserting that
Congress could not constitutionally make special provision, entirely
apart from the Sentencing Guidelines but within the maximum authorized
sentence, for the provisional sentencing and treatment of convicted
persons who suffer from mental illness.
Even if a finding of dangerousness were required, moreover, the
court of appeals correctly held (Pet. App. A4) that such a finding was
satisfied by petitioner's felony conviction for mail theft. In
concluding, in Jones v. United States, 463 U.S. 354 (1983), that a
verdict of not guilty by reason of insanity is sufficiently probative
of mental illness and dangerousness to justify commitment, this Court
stated that "(t)he fact that a person has been found, beyond a
reasonable doubt, to have committed a criminal act certainly indicates
dangerousness." Id. at 364. It makes no difference that petitioner's
crime was of a non-violent nature. In Jones, the Court explicitly
rejected the suggestion that "the requisite dangerousness is not
established by proof that a person committed a non-violent crime
against property." Id. at 365. /5/
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S.G. DENNIS, JR.
Assistant Attorney General
JOEL M. GERSHOWITZ
Attorney
JANUARY 1990
/1/ The appendix to the petition consists of three separately
paginated documents: the court of appeals opinion, the district
court's sentencing order, and excerpts from the district court's
sentencing hearing on December 6, 1988. We will cite these documents
as A, B, and C, respectively.
/2/ The district court emphasized that "the moment that it appears
from the director of the facility to which (petitioner) may be
assigned that he is sufficiently recovered from his problems so that
he is no longer in need of custody for care or treatment, then that
fact (will be) made known to me and I will order that he be released."
Pet. App. C12.
/3/ The district court stated that under the Guidelines petitioner
would be subject to two to eight months' imprisonment. Pet. App. C10.
/4/ Petitioner's reliance (Pet. 9) on United States v. DeBellis,
649 F.2d 1 (1st Cir. 1981) is thus unavailing because, unlike the
situation in DeBellis, petitioner has not been confined for longer
than the maximum sentence. Indeed, as discussed, if petitioner were
to be held beyond the maximum authorized sentence, the extensive
procedure set forth in 18 U.S.C. 4246 would be required.
/5/ Petitioner also invokes the Equal Protection Clause to support
his argument that he should not have received a sentence longer than
that suggested by the Sentencing Guidelines. Pet. 11 n.2. Because it
rests on the claim of discrimination between convicted persons
suffering from mental illness and other convicted persons, this equal
protection argument essentially duplicates petitioner's due process
argument, and is controlled by the same principles. See Jones v.
United States, 463 U.S. at 362 n.10.